41 posts from November 2015

11/30/2015

While most criticisms of nonoriginalism focus on the creation of constitutional rights that do not exist in the document, the failure to follow the original meaning concerning the separation of powers should receive more attention. In particular, the failure of the courts and, in areas where the courts do not typically decide matters, the political branches to enforce the original meaning has had serious harm.

Consider the requirement under the Constitution’s original meaning that Congress authorize American wars (except where the U.S. is attacked). There is a strong case to be made that Constitution’s original meaning imposes this rule. Despite claims of presidents who seek to engage in hostilities without congressional authorization, the Constitution’s original meaning would work well. By contrast, under our existing “constitutional practice,” presidents are usually able to engage in war without congressional authorization, as President Obama did in Libya. And this not only allows presidents to fight wars that the country is not behind, but also undermines the entire system of responsibility that the Constitution establishes in this area.

In the typical situation, the President believes that he does not need an authorization of force to take action, but seeks such authority anyway, presumably to increase the political support for his actions. In this situation, the Congress has little reason to provide such authorization. It would require the members to take political responsibility for an action that they cannot control.

Under the Constitution’s original meaning, things work better. The President could not act on his own and his attempt to do so would be an impeachable offense that would be widely rejected. But that would not mean that the Congress would be unwilling, as it often is now, to provide authorization. First, the Congress would feel political pressure to act, because without its authorization, no actions could be taken. Second, because the Congress could impose binding limits, it could set the parameters of the action and therefore take responsibility for a decision it made.

This is the way that the constitutional system is supposed to operate. But because presidents of both parties have asserted and exercised the power to take offensive military actions, it is undermined. The Congress becomes infantilized, refusing to take responsibility because it has no ultimate power. The President enhances his own power, because he rightly claims that the Congress is unwilling to act, and the President becomes the ultimate decider. This is no improvement on the decisions of the Framers. It is a corruption and a serious infirmity.

The Joint Comprehensive Plan of Action (JCPOA) is not a treaty or an executive agreement, and is not a signed document. The JPCOA reflects political commitments between Iran and the P5+1 (the United States, the United Kingdom, France, Germany, Russia, China) and the European Union. As you know, the United States has a long-standing practice of addressing sensitive problems in negotiations that culminate in political commitments.

(1) A "political commitment" is a well-accepted technical term for a nonbinding agreement. So this letter makes clear the administration's position that the JCPOA is nonbinding (which I have previously assumed to be the case). This is a very welcome clarification; it would have been much better to have stated it sooner, to prevent domestic and international misunderstandings. Clarifying that point removes the most important constitutional objection to the JCPOA (as I discussed here). In my view, the President's executive power over foreign affairs allows him, as a general matter, to make nonbinding political commitments without the approval of the Senate or Congress. While I have some constitutional reservations about the longer term commitments in the JCPOA, the core of the deal (lifting sanctions) is within the President's power even without the JCPOA. Thus he can undertake to lift them upon Iran taking certain actions.

(2) Because the JCPOA is a nonbinding agreement, the next President is (by definition) not bound by it, either as a matter of international law or as a matter of U.S. constitutional law. Thus, Professors Bruce Ackerman and David Golove owe Marco Rubio an apology. In an article earlier this year, they called Senator Rubio lawless for declaring his intention to repudiate the JCPOA if elected. That declaration, they wrote, was "an unprecedented pledge to inaugurate his term by repudiating the constitutional command to 'take care that the laws be faithfully executed.'" Not so. As the State Department letter makes clear (and as I and Julian Ku argued at the time), the JCPOA -- as a nonbinding agreement -- is not part of the laws which the President must faithfully execute.

(3) A lot of people owe Senator Tom Cotton an apology. Last Spring he famously wrote an "open letter" to Iran's leadership (actually a post on his website) saying that the then-pending deal with Iran could be repudiated by the next President if not approved by Congress. For this he was widely criticized, both substantively and procedurally. But it's clear now that he was simply stating a basic proposition of U.S. law that the State Department does not contest. If the JCPOA is a nonbinding political commitment, as the State Department now says, it does not bind the next President. Thus, regardless of the propriety of the Senator communicating (in a sense) with a foreign government, the substance of what he wrote was exactly right and was consistent with the administration's approach the to negotiations.

RELATED: This issue is going to recur after the pending Paris climate change conference (assuming it produces an "agreement" of some sort). See this post from Julian Ku: A Treaty or Not a Treaty? My Senate Testimony About the Paris Climate Change Agreement. A key point: "the Senate should require the State Department to clarify which parts of a climate change agreement are legally binding, and which ones are merely non-binding political commitments."

11/29/2015

State governments might be able to deny refugees some resettlement assistance currently provided by state agencies. But they can’t bar Syrian refugees from settling within their jurisdiction.

The above is true under current and longstanding Supreme Court precedent. Things might be very different under the original meaning of the Constitution, which, in my view, does not give Congress any general authority over immigration. Under this approach, states had broad power over immigration, and many states did in fact exclude some categories of migrants in the early to mid nineteenth century. I would be happy to see the Supreme Court go back to the original meaning in this field (though the odds of that happening in the near future are extremely low).

But restoration of the original meaning is unlikely to appeal to modern immigration restrictionists because it would require them to concede that the federal government lacks the power to bar migrants. Immigrants could then still enter the US so long as at least one state was willing to take them.

Maybe. I agree that it might well be true that Congress lacks a general power over immigration under the Constitution's original meaning. But I would think Congress could regulate the transportation of immigrants in foreign commerce. Other congressional powers might allow some further regulation of immigration, and added together they might amount to something close to a general power.

Another possibility is that border security is an executive power of the President (derived from the English monarch's power to admit foreigners into England), and that Congress has a derivative necessary-and-proper power to pass laws in support of that power.

This lively book explains why we need the humanities. It shows how society has long relied on humanities scholarship to address important public policy issues. Donald Drakeman, an entrepreneur and educator, builds a compelling case for the practical importance of the humanities in helping governments make decisions about controversial issues affecting our lives in fields as diverse as healthcare and civil liberties.

The author adds:

I wanted to let you (and your readers) know that, perhaps despite its title, my new book has a great deal to do with originalism.

My argument for the importance of the humanities centers on how scholarship has influenced the decisions of the Supreme Court and other unelected governmental entities where a small group holds impressively concentrated political power. As you can imagine, my discussion of historical and methodological issues in constitutional interpretation -- and originalism in particular -- occupies all of one chapter and quite a bit of another in which I argue for greater intellectual diversity in humanities scholarship

This article originated as part of a symposium at the University of Oklahoma College of Law held on the occasion of the 125th anniversary of the Supreme Court’s decision in Chae Chan Ping v. United States, often called The Chinese Exclusion Case. Immigration law’s plenary power doctrine, traditionally traced to that decision, has persisted despite a steady and vigorous stream of scholarly criticism; its vitality is reflected in the Court’s 2015 decision in Kerry v. Din. This essay undertakes to explain why.

Contrary to some accounts, the Court’s strong deference to the political branches does not derive from the concept of sovereignty. Justice Field’s opinion for the Chae Chan Ping Court invoked sovereignty not to trump rights claims but to solve a federalism problem – structural reasoning that locates the immigration control power squarely in the federal government rather than the states, even though that power is not explicitly enumerated in the Constitution. In any event, that a power is labeled sovereign does not necessarily entail that it lies beyond judicial review or deserves extraordinary deference.

The Chae Chan Ping Court’s deference to the political branches instead rested primarily on the close linkage between foreign affairs and immigration control decisions. This essay illustrates why such linkage is more significant than is often appreciated, even today, as the federal government seeks to work in a complex and uncertain global context, where many powers and enforcement tools taken for granted in the domestic arena simply are not reliably available. The Court implicitly remains willing to give the political branches leeway to use immigration authorities in rough-hewn ways, even though deference does mean that some governmental acts deriving from illicit motives rather than genuine foreign affairs considerations may go unremedied in court. The Court adheres to a strong deference doctrine out of concern that lower courts, if given wider authority to review, will overvalue individual interests and undervalue governmental interests. In an increasingly dangerous world, the Supreme Court is unlikely to overrule the plenary power doctrine. Academics and activists should respond by focusing more attention on policy analysis and advocacy addressed to the political branches, forums where constitutional values can be pursued and successfully – if unevenly – vindicated, as Justice Field recognized.

Another reason the plenary power doctrine endures, in my view, is that originalists have not developed a serious alternative account of the Constitution's allocation of immigration power. This is a great project awaiting someone to take it on.

Today I ran across further evidence of Bingham's relative lack of crispness in recalling due-process cases--his misremembering of Murray's Lessee as "McMillan's Lessees" in July 1866, during a dispute with Thaddeus Stevens, who wanted to preserve the right to jury trial in tax-fraud cases. Bingham's taunting of Stevens using the wrong case name--"I ask when and where the case of McMillan's Lessees was ever challenged, much less reversed, in any court in America"--makes Bingham seem especially foolish. The episode is evidence that Justice Curtis's interpretation of due process was still generally known and followed among congressmen in 1866, but it also suggests that we should probably not rely on John Bingham for precise details about the law.

In The Perils of Originalism: Notes from Zivotofsky II, Professor Primus explains that "it is important to point out, on a regular basis, how flagrantly awful even the most respected and prominent originalists can be at rendering their historical evidence." His example is Justice Scalia's opening paragraph in dissent in Zivotofsky v. Kerry, which states:

Before this country declared independence, the law of England entrusted the King with the exclusive care of his kingdom’s foreign affairs. The royal prerogative included the “sole power of sending ambassadors to foreign states, and receiving them at home,” the sole authority to “make treaties, leagues, and alliances with foreign states and princes,” “the sole prerogative of making war and peace,” and the “sole power of raising and regulating fleets and armies.” 1 W. Blackstone, Commentaries *253, *257, *262. The People of the United States had other ideas when they organized our Government. They considered a sound structure of balanced powers essential to the preservation of just government, and international relations formed no exception to that principle.

Why is this paragraph so "flagrantly awful"? Primus continues:

... [T]he picture of eighteenth-century British government that Justice Scalia offered to frame the point is fully make-believe. By the time of the Hanoverian Kings, Parliament was thoroughly involved in foreign policy. Indeed, the Parliamentary settlement that installed the Hanovers in the first place came with statutory limits on what these new Monarchs would be allowed to do in the domain of foreign affairs. Through the eighteenth century, Parliamentary Ministries approved and disapproved alliances, granted and refused foreign subsidies, and as a practical matter authorized war and peace, to say nothing of building the overseas Empire. George II had little interest in that last little endeavor, being much more focused on Europe, but the Crown’s disinterest didn’t matter much, because the Ministers in Parliament were driving. George III, who was more interested in the Empire than his grandfather had been, would have been shocked to learn that he had a free hand in foreign affairs, given his constant experience of having to deal with Parliament. To say nothing of the consternation that news of the King’s exclusive foreign-affairs power would have caused throughout the capitals of Europe, as governments wondered why they were spending so much money retaining London agents for the purpose of lobbying Parliament to make favorable foreign-affairs policy.

Primus is right about all this, of course, as I'm sure Justice Scalia (and anyone who's taken even a casual look at eighteenth-century English history, or just seen The Madness of King George) knows. But Scalia in Zivotofsky isn't claiming to describe "eighteenth-century British government" as it existed in practice. He's describing (as he says) "the law of England" in its formal sense, as set forth in Blackstone, the most widely read legal authority in founding-era America. Scalia's point is not that the American framers rejected the actual practice in England (however they may have understood it); it's that in framing the formal allocation of powers in the U.S. Constitution they rejected the formal concentration of foreign affairs powers that Blackstone described.

And of course Scalia is absolutely correct about this. Indeed, Primus concedes later in his post:

Technically, in the eighteenth century and also today, foreign-affairs powers in the United Kingdom’s system were and are classified as matters of “royal prerogative.” Blackstone used that term at one of the pages that Scalia’s opinion cites.

Well, yes. That's exactly what Scalia says. But, Primus complains, "everyone from Blackstone to John Adams to Louis XIV knew that in the British system Parliament had a lot of actual power over foreign affairs." Of course it did. But Scalia isn't talking about actual power. Nothing in Scalia's paragraph denies that parliament had "a lot of actual power over foreign affairs." It simply isn't relevant to his point, which is that the American framers rejected Blackstone's description (and the formal law), not that the American framers rejected the actual practice.

So what exactly is Primus' problem with Scalia's paragraph? He doesn't deny that most foreign affairs powers were "technically" (meaning formally) classified as matters of royal prerogative. He doesn't deny that Blackstone described them in this way. He doesn't deny that the American framers rejected the concentration of foreign affairs powers that Blackstone described. Ultimately he agrees with everything Scalia says. At most, his complaint must be that Scalia should have had an additional sentence saying something to the effect of "Even in England parliament had much more power over foreign affairs in actual practice than indicated by the formal allocation of authority Blackstone described." Perhaps that would have made the paragraph more complete (especially if it were designed for a law review article rather than a dissent). But I have a hard time seeing how anyone could call its omission "flagrantly awful," or indeed even thinking that it mattered much.

Note too that the actual British practice doesn't undermine Scalia's central point that in the U.S. Constitution's original meaning foreign affairs power is divided. So in a post lamenting originalism's inability to understand the Constitution, Professor Primus points to a paragraph in which the originalist author correctly describes the Constitution.

To be clear, I think Justice Scalia's opinion in Zivotofsky is ultimately unpersuasive. And I think the opening paragraph that Primus quotes overstates in one important respect: the British monarch did not have complete control over foreign affairs, even under the formal system as Blackstone described it, because parliament had control over expenditures. But again I'm struck by how some very smart people let their distaste for originalism lead them to play wholly implausible games of "gotcha." (See also here).

11/23/2015

In my last post, I discussed the implications for originalism if Madison’s Notes are inaccurate. In this post, I will discuss some commentary by Richard Primus, one of the leading originalist critics, about why originalists might be upset about the inaccuracy of the diary.

Primus acknowledges that original public meaning originalists should not be much affected by the inaccuracy, because Madison’s Notes are not very relevant to their theory, which focuses on word meanings. But he still believes originalists are likely to be upset:

Four of the important appeals of originalism are (1) the promise of stability, (2) the opportunity to bask in the glory of the Founders, (3) the (Levinsonian) Protestant-democratic promise that we can go to the real, popular source of authority behind the Constitution rather than having to accept the interpretations of a professionalized elite of judges or scholars, and (4) the sense, when one is immersed in the original sources, that one is in some way inhabiting the heroic world of characters whose stories are central to American national identity. The idea that Madison’s journal is unreliable can threaten all four. It threatens (1) in a diffuse but powerful way, by destabilizing a text that people as a matter of practice treat as if it were stable authority. It threatens (2) because the idea that Madison deliberately shaded his story recasts him as a villain, or at least an angle-playing pol, rather than a statesman. It threatens (3) because it reminds us that reconstructing history is difficult; it requires a lot more work than reading a text or two, and that recognition threatens to throw us back into the arms of a professional elite—a scholarly one—that has the skills and has invested the time to be able to say, with the sort of authority that Bilder’s book can command, when an old text can be trusted and when it cannot be. And it threatens (4) because it reminds us that the long-ago heroic world of the Founders is considerably less accessible to us than we might have hoped.

Wow. I can’t speak for other originalists, but I disagree with most of this. Consider his claim of the allegedly four important appeals of originalism. As a group, those are not important appeals to me.

Let’s start with (2) basking in the glory of of the Founders and (4) inhabiting the heroic world of characters central to American national identity. I don’t share these appeals. In fact, in my work with John McGinnis, we have disclaimed these appeals in two significant ways. First, we have argued that the goodness of the Constitution is not due to the influence of a few great men, but instead because of the supermajoritarian enactment process. If one wanted to point towards other influences, it would be the enlightment and proto classical liberal views that prevailed in American, not the glory of the Founders. Second, speaking of the Founders, we have argued that many of them were slave owners and that slavery was a central defect of the Founding. In fact, it was only with Reconstruction that the constitutional document (if not the nation) corrected this defect.

Now consider (3), the promise we can go to the popular source of authority behind the Constitution rather than having to accept the interpretations of a professionalized elite of judges or scholars. Nope, that one does not drive me either. In fact, McGinnis and I argue that the Constitution was a legal document and therefore one needs to understand the professional language of the law to discern it.

Finally, I should note that reason (1), stability, is something that appeals to me. But it is not of overriding importance. What is more, I find Primus’s claim that the inaccuracy of Madison’s Notes destabilizes the text at best underdeveloped. In what important way does it destabilize the text, especially for someone who adheres to an original public meaning approach?

At Liberty Law Blog, John McGinnis has a three-part series: The Constitution’s Design for Promoting Civic Virtue. From the introduction:

At the Federalist Society Convention I had a debate with my friend, Professor Robert George, on a famous quote by John Adams: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” In the next three posts, I will excerpt my speech. And then I will add a postscript on Washington’s Farewell Address. Here is the beginning:

John Adams famously said “Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” His claim assumes that we can afford to have the limited government created by the Constitution because the people are already possessed of an abundance of virtue—indeed crucially virtues fortified by religion. But the Constitution itself reflects a very different faith: that a people blessed with a constitution like our own are likely to develop the virtues of self-restraint and social trust needed in order to thrive.

Religion can certainly help actualize virtues but so can other kinds of culture and practices. And the Constitution is premised on the enlightenment view that its very design can create the necessary virtues for civic life from elements of human nature, including raw self-interest. The constitutional structure thus maintains itself and does not necessarily depend on any religious system.

Nothing in the text of the Constitution assumes any level of religious belief on the part of the American people. The Constitution emphatically does not call for the people to adhere to any particular religion or any religion at all. It prohibits all religious tests for any federal office and permits Presidents to affirm rather than take a religious oath to defend the Constitution.

Rather than rely on religion or indeed some thick conception of secular, communitarian virtue, like Sparta, the Framers built the Constitution on the bedrock of human nature. As Hamilton said “man will only serve the public interest, if the structure of government interests his passions in doing so.” Paradoxical as it might seem, Hamilton’s view reflects an important element of Protestant theology at the time which emphasized that politics had to recognize the consequences of the fallen nature of man. Given the unknowability of who actually was among the elect, even many religious believers would have acknowledged it perilous to make the Constitution depend on the uncertain religious state of the populace.

Instead of relying on religion, the Constitution has a different design to elicit the virtues needed for civic life and its preservation. First, the Constitution creates a commercial republic to make sure the self-interest of man helps promote virtue. It is remarkable that except for national defense, almost all the enumerated powers of the federal government were meant to facilitate a continental market—to make commerce regular.

Let me end with our current period and on a practical note. If I am right, we can revive a flourishing civic life by restoring the Constitution and not wait on a religious revival. Sociologists tell us that religious belief, at least as measured by adherence to organized religion, is declining. Yet enthusiasm for constitutional fidelity is rising. From the 1960s to the 1980s, a constitutional challenge such as that mounted against Obamacare would have been unimaginable even though religious belief was more widespread. Today, but not back then, a Republican President is required by his political base to nominate someone part of that culture of constitutional fidelity. And note that this culture created in no small part by the secular, civic association—the Federalist Society. We saw a remarkable instance of that culture’s power when President George W. Bush was forced to withdraw Harriet Miers, a candidate who had no proven record of sound constitutional interpretation.

As Obergefell reminds us, our legal culture is far from perfect but it is a lot better than in the years of the Warren or even the Burger Courts, when religious adherence was somewhat higher but support for interpreting the Constitution as written was feeble both academically and politically.

The reasons for this greater enthusiasm for constitutional fidelity lie in the fact that after the Reagan Administration, respect for free markets, federalism and limited government—matters at the core of our Constitutional order– generally grew even as the society has become less, not more religious. Thus our Constitution was not made for a people who must be faithful to a religion but instead a people who need to have the civic virtues to be faithful to the Constitution. And those virtues in turn are likely to be generated by following the Constitution as written. It is to that virtuous circle for civic virtue that we need to return.

The Minnesota Law Review published Anthony Amsterdam’s celebrated Holmes Lectures just over forty years ago. Those lectures defended a normative, or at least very generally historical approach to the definition of “searches and seizures,” and a “regulatory model” as opposed to an “atomistic model” for assessing when "searches and seizures" are reasonable or “unreasonable.” Fourth Amendment jurisprudence substantially, but not yet completely, adopts these normative and regulatory templates.

The Article argues that technological and institutional changes may finally usher in a Fourth Amendment regime much like the one Professor Amsterdam defended. Technological change is driving a practical merger of historical and normative interpretive approaches. A sophisticated historical approach concerns itself less with founding-era rules than with the values those rules reflected. The contemporary quest for historical value judgments is unlikely to veer very far from the quest for sound value judgments today. As examples, the Article considers historical analogues to GPS location tracking and to third-party subpoenas, and concludes that while historical evidence cuts against the third-party doctrine and in favor of the mosaic theory, history neither clearly requires nor clearly forbids either doctrine.

Although some strands of Fourth Amendment doctrine still reflect the atomistic approach, technological and institutional changes have the potential to usher in a thoroughly regulatory regime. It should come as no surprise that rapid technological and institutional changes occasionally undermine the justification of particular rules, driving a turn toward Fourth Amendment law articulated as rules subject to rapid revision, including occasional reversions to general standards. Institutional reform injunctions are now applying the regulatory perspective even in areas where the Supreme Court has clung to atomism.

These changes are underway, and should be encouraged. Toward that end, this article proposes two illustrative reforms. The first is making the Fourth Amendment third-party doctrine depend on the availability of an individual opt-out. The second is a federal program to certify local police departments for compliance with constitutional standards.

Time may falsify my prophecy. In that case, Professor Amsterdam would have framed the issues for half a century without the vindication of practical success. "Perspectives on the Fourth Amendment" would still be ranked among the masterpieces of legal scholarship for just that — for framing deep and abiding issues with immense learning, acute analysis, and exquisite rhetoric.